The Headlines

CAS Decision on Manchester City FC Case

After the UEFA’s Adjudicatory Chamber of the Club Financial Control’s (CFCB) decision earlier this year to ban Manchester City FC for two seasons, observers waited impatiently to see the outcome of this high profile dispute. The CFCB’s decision had found that Manchester City FC overstated sponsorship revenues and in its break-even information given to UEFA. While some feared this showdown could lead to the demise of UEFA’s Financial Fair Play (FFP) regulations, the now publicized CAS panel’s decision is more nuanced. The panel’s decision turned on (see analysis here and here) (a) whether the ‘Leaked Emails’ were authentic and could be admissible evidence, (b) whether the ‘CFCB breached its obligations of due process’, (c) whether the conclusions of the 2014 Settlement Agreement prevents the CFCB from charging Manchester City FC, (d) whether the charges are time-barred, (e) the applicable standard of proof, (f) whether Manchester City FC masked equity funding as sponsorship contributions, and (g) whether Manchester City FC failed to cooperate with CFCB. In the end, among other findings, the Panel held that some of the alleged breaches were time-barred but maintained that Manchester City FC had failed to cooperate with CFCB’s investigation. In light of this, the Panel significantly reduced the sanction placed on Manchester City FC by removing the two-season suspension and reducing the sanction from 30 million euros to 10 million euros.

Qatar Labour Law Reforms Effectively Abolishes the Kafala System

Just a few days after Human Rights Watch released a lengthy report on abusive practices suffered by migrant workers in Qatar, Qatar adopted a series of laws that effectively gets rid of the Kafala system by no longer requiring migrant workers to obtain a ‘No Objection Certificate’ from their employer in order to start another job. The International Labour Organization declared that this development along with the elimination of the ‘exit permit requirements’ from earlier this year means that the kafala system has been effectively abolished. In addition to these changes, Qatar has also adopted a minimum wage that covers all workers and requires that employers who do not provide food or housing at least give a minimum allowance for both of these living costs. Lastly, the new laws better define the procedure for the termination of employment contracts.

In reaction to these changes, Amnesty International welcomed the reforms and called for them to be ‘swiftly and properly implemented’. Indeed, while these amendments to Qatar’s labour laws are a step in the right direction, Amnesty International also cautions that the minimum wage may still be too low, and in order to be effective, these new laws will have to be followed with ‘strong inspection and complaint mechanisms’.

CAS Decision Concerning Keramuddin Karim Abuse Case

In June of last year, Keramuddin Karim, former president of Afghanistan’s soccer federation, was banned by FIFA for life (see the decision of the adjudicatory Chamber of the FIFA Ethics Committee) after reports of sexual and physical abuse that emerged in late 2018. Following a lengthy and tumultuous investigation in Afghanistan, Afghan officials came forward with an arrest warrant for Mr. Karim. Nevertheless, despite attempts to apprehend Mr. Karim, Mr. Karim has still avoided arrest over a year later. Most recently in August, Afghan Special Operation officers attempted to apprehend him but he was not at the residence when they arrived.

Meanwhile, Mr. Karim had appealed FIFA’s lifetime ban to the CAS and the CAS Panel’s decision has recently been released. In its decision, the Panel upheld both the lifetime ban and the 1,000,000 CHF fine, finding that due to the particular egregious nature of Karim’s acts, ‘they warrant the most severe sanction possible available under the FCE’. Since both Karim and his witnesses were unable to be heard, the case raises questions connected to the respect of fundamental procedural rights at the CAS. 

Major International Sports Law Decisions

• CAS - CAS 2020/A/6785 Machester City FC v. UEFA
• CAS – CAS 2019/A/6388 Karim Keramuddin v. FIFA
• CAS - CAS 2018/A/6075 Igor Labuts v. Football Association of Ireland
• CAS - CAS 2018/A/5725 Santos Futebol Clube v. FC Barcelona, Neymar da Silva Santos Junior, Neymar da Silva Santos, Neymar Sport e Marketing s/s Limitada and FIFA & CAS 2018/A/5726 Neymar da Silva Santos Junior v. Santos Futebol Clube & FIFA
• CAS - CAS 2018/O/5830 International Surfing Association v. International Canoe Federation

Official Documents and Press Releases

CAS

• CAS – CAS Bulletin 2020/01
• CAS - CAS issues its decision in the appeal filed by Trabzonspor A.S. against UEFA
• CAS - CAS confirms the life ban imposed on Keramuddin Karim
• CAS - Decision in the arbitration procedure between Manchester City FC & UEFA
• CAS - CAS annuls the seven-point deduction imposed on PAOK FC and refers the matter back to the Hellenic Football Federation Appeals Committee for adjudication
• CAS - Amendments to the Rules of the Court of Arbitration for Sport (CAS): Spanish becomes the 3rd official language for CAS arbitrations
• CAS - CAS arbitration Manchester City FC v. UEFA: the hearing has concluded / decision to be issued in July
• CAS - CAS registers the appeals filed by Andrea Iannone and the World Anti-Doping Agency (WADA) against the FIM International Disciplinary Court decision of 31 March 2020
• CAS – The Court of Arbitration for Sport (CAS) Decides that the International Surfing Association shall be the International Federation Governing and Administrating the Sport of Stand-Up Paddleboard at Olympic Level
• CAS - The Court of Arbitration for Sport (CAS) Finds Ibai Salas Zorrozua Guilty of an Anti-Doping Rule Violation; Imposes Four-Year Period of Ineligibility
• CAS - The Court of Arbitration for Sport (CAS) Dismisses the Appeal Filed by the UAE Football Association

FIFA

• FIFA – FIFA Statement
• FIFA - Bureau of the FIFA Council approves FIFA COVID-19 Relief Plan regulations
• FIFA – Regulations on the Status and Transfer of Players – June 2020 Edition
• FIFA – FIFA greatly welcomes Brazilian court’s decision rejecting Spuni lawsuit
• FIFA - FIFA welcomes CAS decision in the case of former president of Afghan Football Federation Keramuudin Karim
• FIFA - Five-substitute option extended into 2021 in response to COVID-19 pandemic
• FIFA - Relive the Football Law Annual Review 2019 conference
• FIFA - Adjudicatory chamber of the independent Ethics Committee sanctions Markus Kattner
• FIFA – Decision of the FIFA Disciplinary Committee – Arsenal Football Club
• FIFA - Decision of the FIFA Disciplinary Committee – Markus Kattner
• FIFA - FIFA acknowledges WTO panel report
• FIFA - FIFA provides further guidance on COVID-19 football regulatory issues
• FIFA - Further changes to the international match calendars due to the COVID-19 pandemic unanimously approved by the Bureau of the Council
• FIFA - Statement from the chairperson of the investigatory chamber of the independent Ethics Committee
• FIFA - Independent Ethics Committee extends provisional ban on Yves Jean-Bart and sanctions other Haitian football officials
• FIFA - Bureau of the FIFA Council temporarily adapts rules on release of players for September 2020 window due to COVID-19
• FIFA - FIFA publishes first reports for Disciplinary & Ethics Committees and on anti-doping activities
• FIFA - Regulations on the Status and Transfer of Players – August 2020 Edition
• FIFA - FIFA insists Trinidad and Tobago dispute has to be resolved at CAS
• FIFA - FIFA publishes first reports for Disciplinary & Ethics Committees and on anti-doping activities

IOC

• IOC – International Olympic Committee Publishes 2019 Annual Report and Financial Statements
• IOC - Candidatures for IOC Vice Presidency And Executive Board
• IOC - UN General Assembly Confirms New Dates for the Observation Period of the Olympic Truce
• IOC – IOC Executive Board makes Decisions with Regard to International Weightlifting Federation

UEFA

• UEFA - UEFA statement on CAS Manchester City decision
• UEFA - Temporary emergency measures for Financial Fair Play
• UEFA - FFP update on the 2019/20 monitoring of clubs by the CFCB

WADA

• WADA – Strategic Plan 2015-2019
• WADA - WADA publishes its Five-Year Strategic Plan under the theme ‘Leading Anti-Doping in a New Era’
• WADA - WADA responds in detail to ONDCP Report regarding Agency’s funding
• WADA - WADA publishes final designed version of Athletes’ Anti-Doping Rights Act
• WADA - WADA publishes final versions of 2021 World Anti-Doping Code and International Standards in English and French
• WADA - WADA update on its follow-up of McLaren investigation into the International Weightlifting Federation
• WADA - WADA delays call for proposals for 2021 Social Science Research Grant Program to October
• WADA - WADA statement on investigation into the International Weightlifting Federation
• WADA - WADA suspends accreditation of New Delhi Laboratory for another period of up to six months
• WADA - WADA Compliance Review Committee update
• WADA - WADA statement on the dismissal of RUSADA’s Director General

• Association of Summer Olympic International Federations (ASOIF) - Third Review Of International Federation Governance
• Athleten Deutschland - Mehr Teilhabe bei der Planung der Olympischen Spiele in Tokio 2021
• Athleten Deutschland - Stellungnahme zur Überprüfung von Regel 50 der Olympischen Charta
• Fédération Equestre Internationale (FEI) - FEI Tribunal issues Final Decision in human anti-doping case
• Fédération Equestre Internationale (FEI) - CAS rules on appeal against horse abuse sanctions
• Fédération Equestre Internationale (FEI) – Court of Arbitration for Sport issues Decision on equine anti-doping appeal
• Fédération Equestre Internationale (FEI) – FEI Tribunal hands down record sanction in horse abuse case
• Fédération Equestre Internationale (FEI) - FEI Tribunal dismisses athlete appeals on Villeneuve-Loubet decision
• Fédération Internationale de Gymnastique (FIG) - FIG makes significant progress towards the highest standards of good governance
• Fédération Internationale de Gymnastique (FIG) - Antidoping - A Brazilian athlete sanctioned
• FIBA – FIBA Executive Committee condemns all forms of racism in open letter from President
• FINA - FINA allocates US$ 6.4 million in a COVID-19 support plan
• International Biathlon Union - The IBU joins UN climate action initiative for sports
• International Fencing Federation (FIE) - FIE Announces 2020 Global support Plan for World Fencing Family
• International Judo Federation - The Judo Family Stands up Against Racism
• International Paralympic Committee - IPC Anti-Doping Code revised
• International Shooting Sport Federation - The ISSF significantly improves its position on Governance
• International Tennis Federation – ITF Announces Further Measures to Support Stakeholders
• International Tennis Federation – ITF Welcomes Publication of ASOIF Governance Review
• International Table Tennis Federation (ITTF) – ITTF united against racism and all forms of discrimination
• International Table Tennis Federation (ITTF) - ITTF delivers on promise to improve its Governance
• International Weightlifting Federation - McLaren Findings And IOC Support Driving Reform Process At International Weightlifting Federation
• SportIreland - Anti-Doping Rule Violation - Issued on behalf of Swim Ireland and Sport Ireland
• Tennis Integrity Unit – Tunisian Tennis Player Majed Kilani Banned For Seven Years And Fined $7,000 After Conviction On Match-Fixing And Associated Corruption Charges
• UCI - The UCI strengthens the health protocol for procedures to be followed with the reopening of the 2020 season of road cycling competitions
• UCI - The UCI publishes its 2019 Annual Report
• UCI - ASOIF ranks the UCI among top International Federations for its good governance
• UCI - Decision of the UCI Anti-Doping Tribunal regarding Kanstantsin Siutsou
• World Archery – World Archery Improves in International Federation Good Governance Report
• World Athletics – World Athletics Council resolves to expel RusAF if payments not received by 15 August
• World Athletics - Statement on Russian Federation
• World Athletics - ASOIF governance review recognises significant progress in World Athletics reform agenda
• World Para Powerlifting - Para powerlifter Johannes Hernandez given 15-month ban
• World Rowing - ASOIF Governance review highlights key accomplishments for FISA
• World Rugby - Rugby unified in solidarity against racism
• World Sailing – Third Review of IF Governance reveals significant progress, challenges remain
•  World Sailing - World Sailing confirms International Olympic Committee financial support
• World Taekwondo – World Taekwondo improves position in ASOIF’s IF Governance Review

International/national Organizations

• Belgische Mededingingsautoriteit - Het Mededingingscollege heeft geweigerd voorlopige maatregelen op te leggen zoals gevraagd door Royal Excelsior Virton
• International Labour Organization - Dismantling the kafala system and introducing a minimum wage mark new era for Qatar labour market 

Civil Society Organizations/Unions

• Amnesty International UK  - Qatar: 100 World Cup stadium workers not paid for up to seven months
• Centre for Sport and Human Rights – 2019 Sporting Chance Forum – Meeting Report
• EU Athletes - Covid-19 impact on players and their player associations
• FIFPro – Playing Our Part: Footballers During the Covid-19 Pandemic
• FIFPro - Afghanistan Women's National Team Sexual Abuse: Statement
• FIFPro – FIFPro and ECA Develop Guidelines on Player Health Protection
• Global Athlete – Athlete Groups Call On World Anti-Doping Agency To Implement Stronger Reforms
• Global Athlete – Global Athlete Statement On Olympic Charter Rule 50
• Global Athlete – Sport, Politics, Protest … And The Olympics
• Global Athlete – Global Athlete Calls On The International Weightlifting Federation (IWF) To Implement Independent Athlete Oversight As A Result Of The McLaren Independent Investigation
• Global Athlete – Athlete Groups Cal on World Anti-Doping Agency to Implement Stronger Reforms
• Human Rights Watch - “I Was Hit So Many Times I Can’t Count”: Abuse of Child Athletes in Japan
• Rapid Transition Alliance - Report: Playing Against The Clock: Global sport, the climate emergency and the case for rapid change
• UNI Global Union - Sport & Rights Alliance: IOC Should Uphold Human Rights

In the News

Football

• David Conn - Manchester City decision does not mean end of financial fair play
• David Conn - Der Spiegel claims new Manchester City emails cast doubt on Cas verdict
• Tariq Panja - Secret Contracts Held a Surprise for Fiorentina’s New Owners
• Graham Dunbar - Swiss attorney general offers to resign in FIFA case fallout
• Graham Dunbar - FIFA bans former finance director Kattner for 10 years
• Graham Dunbar - FIFA has 13 ongoing investigations, plus 62 other cases
• Graham Dunbar - Banned for life by FIFA, soccer officials line up to appeal
• Graham Dunbar - Fresh Swiss investigation targets ex-FIFA president Blatter
• Graham Dunbar - IOC to open talks about easing protest ban at Olympics
• Graham Dunbar - Slovak club fights UEFA at CAS over Champions League forfeit
• Sean Ingle - Saudi TV piracy ruling puts Newcastle takeover under renewed scrutiny
• John Leicester - Former IAAF president turns on son at corruption trial
• Matt Slater and Sam Lee - Man City v UEFA: The full 93-page CAS judgment explained
• Guillem Balague - Lionel Messi hands in Barcelona transfer request
• Associated Press - Platini quizzed in Swiss investigation of $2M FIFA payment

Doping

• Gabrielle Tétrault-Farber - Russian anti-doping chief rejects social media corruption allegation
• James Ellingworth - Investigation finds doping cover-ups in weightlifting
• Andy Brown - RusAF Restoration Commission meeting postponed

Other

• Dave Zirin and Jules Boykoff – Athletes Are Fighting the Olympic Ban on Protests
• Jules Boykoff and Dave Zirin - Op-Ed: Tokyo’s 2020 Olympics are showing the nightmare waiting for L.A. in 2028
• Dave Zirin and Jules Boykoff - Racist IOC President Avery Brundage Loses His Place of Honor
• Dave Zirin and Jules Boykoff - Should the World Boycott the 2022 Beijing Olympics?
• Philip Barker - CANOC President calls for IOC to rescind life bans issued to athletes 48 years after podium protests
• Bill Donahue - The Price of Gold
• Peter Olusoga and David Olusoga - From Muhammad Ali to Colin Kaepernick, the proud history of black protest in sport
• Neil Shefferd - Athletes Germany welcomes plan to review Rule 50 of Olympic Charter
• Liam Morgan - IOA vice-president slams IOC and FIH for refusing to take action against Batra
• Clément Guillou - Le Tribunal arbitral du sport, arbitre controversé
• Clément Guillou - Au Tribunal arbitral du sport, un petit nombre d’arbitres trustent les nominations
• Ben Bloom - Athletes taking a knee at Tokyo 2021 Olympics and Paralympics face bans
• Michael Pavitt - IOC "fully respects" athlete statements as USOPC pledges to hold forum amid protests
• Michael Pavitt - World Uyghur Congress lodges complaint to IOC over Beijing 2022 Winter Olympics
• David Wharton - L.A. Olympic officials ask IOC to allow athlete protests
• Gillian R. Brassil and Jeré Longman - Who Should Compete in Women’s Sports? There Are ‘Two Almost Irreconcilable Positions’
• Thomas Gibbons-Neff and Fahim Abed - Afghan Soccer Official, Charged With Sexual Abuse, Evades Arrest
• Marc Stein - Led by N.B.A., Boycotts Disrupt Pro Sports in Wake of Blake Shooting

Academic Materials

International Sports Law Journal

• Borja Garcia-Garcia, Mark James, Dionne Koller, Johan Lindholm, Despina Mavromati, Richard Parrish and Ryan Rodenberg - The impact of Covid-19 on sports: a mid-way assessment
• Jan Exner - Fixed sanction frameworks in the World Anti-Doping Codes 2015 and 2021: Can hearing panels go below the limits in the pursuit of proportionate punishments?
• Artur Flamínio da Silva and Daniela Mirante - Mandatory arbitration as a possible future for sports arbitration: the Portuguese example
• Jan Łukomski - On the finalisation of international football transfers and professional football players’ contracts
• Björn Hessert - Cooperation and reporting obligations in sports investigations
• Jacob Kornbeck - What can sports governing bodies do to comply with EU antitrust rules while maintaining territorial exclusivity?
• Cedrick Aghey - Integration of eSports in the structure of Ifs: disruption or continuity?
• Shaun Star and Sarah Kelly - A level playing field in anti-doping disputes? The need to scrutinize procedural fairness at first instance hearings

Tilburg Law Review

• Antoine Duval and Daniela Heerdt - FIFA and Human Rights – a Research Agenda
• Wojciech Lewandowski - The Implications of the Recent Jurisprudence of the Court of Justice of the European Union for the Protection of the Fundamental Rights of Athletes and the Regulatory Autonomy of Sporting Federations
• Bodo P. Bützler and Lisa Schöddert - Constitutionalizing FIFA: Promises and Challenges
• Raquel Regueiro - Shared Responsibility and Human Rights Abuse: The 2022 World Cup in Qatar
• Michele Krech - Towards Equal Rights in the Global Game? FIFA's Strategy for Women’s Football as a Tightly Bounded Institutional Innovation

Other

• Dikaia Chatziefstathiou, Borja García and Benoit Séguin (eds) - Routledge Handbook of the Olympic and Paralympic Games
• Johan Lindholm and Richard Parrish - Horizontal direct effect of Union citizenship and the evolving sporting exception: TopFit

Blog

Asser International Sports Law Blog

• Marjolaine Viret - Anti-Doping in Times of COVID-19: A Difficult Balancing Exercise for WADA

Law in Sport

• Benoît Keane and Ben Foster – Sport and competition law – the year in review 2019/20
• David Menz and Maximilian Wegge - Political protest in football – is it time for a (legal) debate? Analysing FIFA’s regulations and recent actions in the Bundesliga
• John Mehrzad QC and Joseph Bryan - Can sports clubs compel players to return to play and waive health and safety liability?
• Jack Anderson - Sports governance - the year in review 2019/20
• Lindsay S. Brandon and Howard Jacobs - Lawson v. IAAF: a view from the perspective of athletes' counsel
• Michiel Fierens and Jan De Bruyne - Artificial intelligence in sports – the legal and ethical issues at play

Play the Game

• Mary Hums, Eli A Wolff and Nina Siegfried - Making a case for athlete advocacy: Humanitarians, Olympism and good governance
• Jens Sejer Andersen - The man who blew the whistle on his own corruption
• Faraz Shahlaei – Athletes’ gestures are protected by international human rights law
• Nikki Dryden - Athletes should not be gagged in exchange for Olympic dream

Sport and EU Blog

• Joanna Harper - Right to compete: Transgender women
• Dhananjay Dhonchak - Football Player Contracts in times of Covid-19
• Maximilian Seltmann - Covid-19: Amplifying the Voice of Athletes

Sport Integrity Initiative

• Andy Brown - RUSADA completes analysis of ROC & RPC audit
• Andy Brown - FIDAL doctors & official acquitted of responsibility in Schwazer case
• Andy Brown - Leading Russian athletes consider changing citizenship
• Andy Brown - ‘Whereabouts’ & ‘Tampering’ charges snare another athlete
• Andy Brown - US may withhold WADA funding due to failure to reform
• Andy Brown - CAS annuls FAI’s ban on Latvian player for match-fixing
• Andy Brown - Peruvian swimmer sanctioned with eight year ban for second offence
• Kuo Zhao - Are you allowed to be heard? How the Sun Yang case reveals the systematic prejudice against athletes in sport arbitration

SportLegis

• Despina Mavromati - A. v. IFAF, USA Football, Football Canada et al. – Election dispute – Ultra Petita
• Despina Mavromati - Appeal against the CAS award of June 8, 2018 by the Court of Arbitration for Sport (CAS 2017/A/5301 and CAS 2017/A/5302)
• Despina Mavromati - Judgment 4A_662/2018 of May 14, 2019 FC A. v. FC B. Request for revision of the CAS Award 2015/O/4502

Other

• Andrew Boyce - Aggrieved football clubs turn to EU antitrust law after Covid-19 stops play
• Nii Anteson – Reconsidering Rule 50
• Richard Martin and Ihar Nekrashevich - Covid-19 And Anti-Doping Testing: Is Virtual Testing the Answer and the Future?
• Andrea Cattaneo - Financing sport after Brexit: challenges lie ahead
• Human Rights Defender – Special Issue: The Human Rights of Athletes

Podcasts

• International Network of Doping Research – Interview with Howard Jacobs
• BBC - Is the party over for the Olympics?
• LawInSport - Brent Nowicki, Head of the CAS Anti-Doping Division - E92
• LawInSport - How sports diplomacy can help the sport sector respond to COVID19 crisis - Dr J Simon Rofe E91

Upcoming Events

• 17-18 September 2020 - Understand The Rules Of The Game 2020 - LawInSport Annual Conference
• 24 September 2020– Women In Sports Law 4^th Annual Online Conference
• 17-18 June 2021 – Sport & EU 2020 Annual Conference, Rijeka and Opatija, Croatia

Dear all,

Last year we decided to launch the 'ISLJ Annual International Sports Law Conference' in order to give a public platform to the academic discussions on international sports law featured in the ISLJ. The first edition of the conference was a great success (don't take my word for it, just check out #ISLJConf17 on twitter), featuring outstanding speakers and lively discussions with the room. We were very happy to see people from some many different parts of the world congregating at the Institute to discuss the burning issues of their field of practice and research.

This year, on 25 and 26 October, we are hosting the second edition and we are again welcoming well-known academics and practitioners in the field. The discussions will turn around the notion of lex sportiva, the role of Swiss law in international sports law, the latest ISU decision of the European Commission, the Mutu/Pechstein ruling of the European Court of Human Rights, or the reform proposal of the FIFA Regulations on the Transfer and Status of Players. It should be, it will be, an exciting two days!

You will find below the final programme of the conference, please feel free to circulate it within your networks. We have still some seats left, so don't hesitate to register (here) and to join us.

Looking forward to seeing you and meeting you there!

Antoine

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines

Another Russian Doping Crisis? Inconsistencies Uncovered in the Data from the Moscow Lab

Storm clouds are brewing once more in the Russian Doping Saga, after several inconsistencies were uncovered by WADA from data retrieved from the Moscow Laboratory. More specifically, a certain number of positive tests had been removed from the data WADA retrieved from the Moscow Laboratory compared to the one received from the original whistleblower. WADA launched a formal compliance procedure on 23 September, giving three weeks for Russian authorities to respond and provide their explanations. WADA’s Compliance Review Committee is set to meet on 23 October in order to determine whether to recommend declaring Russia non-compliant.

Russian authorities are not the only ones now facing questions in light of these new revelations. Criticism of WADA’s decision to declare Russia compliant back in September 2018 have been reignited by stakeholders. That original decision had been vehemently criticized (see also Edwin Moses’ response), particularly by athlete representative groups.

The fallout of these data discrepancies may be far reaching if Russian authorities are unable to provide a satisfying response. There are already whispers of another impending Olympic Games ban and the possibility of a ban extending to other sports signed to the WADA Code. In the meantime, the IAAF has already confirmed that the Russian Athletes would compete as ‘authorised neutral athletes’ at the World Athletics Championship in Doha, Qatar.

Legal Challenges Ahead to Changes to the FIFA Football Transfer Market

FIFA is set to make amendments to its player transfer market that take aim at setting new boundaries for football agents. These changes will prohibit individuals from representing both the buying and selling club in the same transaction and set new limits on agent commissions (3 percent for the buying club and player representative and 10 percent for the selling team). FIFA is already in the process of creating a central clearinghouse through which all transfer payments would have to pass through, including agent commissions. FIFA will be making a final decision on these proposed changes at the FIFA Council meeting on 24 October.

If these proposed changes are confirmed, they will almost certainly be challenged in court. The British trade organization representing football agents, Association of Football Agents, has already begun its preparations for a costly legal battle by sending a plea to its members for donations. It claims that it had not been properly consulted by FIFA before this decision had been made. On the other hand, FIFA claims that ‘there has been a consultation process with a representative group of agents’ and that FIFA kept ‘an open dialogue with agents’. Regardless, if these proposed changes go through, FIFA will be on course to a looming legal showdown.

CAS Public Hearing in the Sun Yang Case: One Step Forward for Transparency?

On 20 August, 2019, the Court of Arbitration for Sport (CAS) announced that the hearing in the appeal procedure of the Sun Yang case will be held publicly. It will be only the second time in its history that a public hearing has been held (the last one being in 1999, Michelle Smith De Bruin v. FINA). WADA has appealed the original decision of the FINA Doping Panel which had cleared Sun Yang from an alleged anti-doping rule violation. The decision to make the hearing public was at the request of both parties. The hearing is set to take place November 15^th and is likely to be an important milestone in improving the CAS’ transparency.

Sun Yang, who has already served a doping ban for a previous violation in 2014, has also been at the center of another controversy, where Mack Horton, an Australian swimmer, refused to shake hands and stand on the podium with Sun Yang at the world championships in Gwangju.

Sports Law Related Decisions

• Court of Arbitration for Sport (CAS) - Dylan Scott v. International Tennis Federation
• American Arbitration Association (AAA) - USADA V. Salazar
• International Tennis Federation (ITF) Independent Tribunal - Decision in the case of Alexey Aleshchev
• International Tennis Federation (ITF) Independent Tribunal - Decision in the case of Franco Agamenone

Official Documents and Press Releases

CAS

• CAS – The Court of Arbitration for Sport (CAS) ratifies the Settlement Agreement reached between Junya Koga and the International Swimming Federation (FINA)
• CAS – The hearing in the CAS arbitration procedure between WADA, Sun Yang and FINA to be held in public
• CAS – The Court of Arbitration for Sport (CAS) partially upholds the appeal filed by Paris St-Germain and Neymar Da Silva Santos Jr.

FIFA

• FIFA - Normalisation committee appointed for Egyptian FA
• FIFA - Composition of normalisation committee for Pakistan Football Federation confirmed
• FIFA - Qatar's commitment to workers' welfare discussed at BWI 2019 Sports Conference
• FIFA - Statement on the visit of a FIFA delegation to Iran
• FIFA - FIFA and football stakeholders recommend cap on agents’ commissions and limit on loan
• FIFA - FIFA Players’ Status Committee renders decision on transfer of late Emiliano Sala

IAAF

• IAAF - IAAF Approves the Application of 11 Russians to Compete Internationally as Neutral Athletes
• IAAF - IAAF Approves the Application of Russia's Yekaterina Ivonina to Compete Internationally as a Neutral Athlete
• IAAF - No Change in RUSAF Status - IAAF Council Meeting
• IAAF - Athletics Integrity Unit Announces Robust Programme and Policy Updates for IAAF World Athletics Championships Doha 2019

IOC

• IOC - Sports Organisations Join Forces Against Climate Change
• IOC - IOC EB and IAAF Council Hold Joint Meeting in Doha/Qatar

UEFA

• UEFA - UEFA reinforces anti-match-fixing campaign

WADA

• WADA - WADA lifts partial suspension of Stockholm laboratory’s accreditation for a specific analytical method
• WADA - WADA Compliance Review Committee update
• WADA - WADA suspends accreditation of New Delhi Laboratory
• WADA - WADA Athlete Committee publishes meeting outcomes
• WADA - WADA publishes 2018 Annual Report themed ‘The Right Way Together’
• WADA - WADA Executive Committee discusses RUSADA Code Compliance
• WADA - WADA publishes 2020 List of Prohibited Substances and Methods

Other

• Asian Football Confederation (AFC) - AFC Disciplinary and Ethics Committee bans four players for life
• Athletics Integrity Unit - Athletics Integrity Unit Will Not Appeal USADA Decision on American Sprinter Coleman
• Athletics Integrity Unit - Athletics Integrity Unit Announces Robust Programme and Policy Updates for 2019 IAAF World Athletics Championships
• Athletics Integrity Unit - Athletics Integrity Unit to Have Wide-ranging Bet Monitoring During the IAAF World Athletics Championships
• CIES Football Observatory - Financial analysis of the transfer market in the big-5 European leagues (2010-2019)
• Human Rights Watch - Afghanistan: FIFA Sexual Abuse Investigations Stall
• Human Rights Watch - Iran: Women Detained, Accused of Flouting Stadium Ban
• Human Rights Watch - Iran’s ‘Blue Girl’ Suicide Sparks Renewed Calls on FIFA Over Stadium Ban
• IBU (International Biathlon Union) - IBU Anti-Doping Hearing Panel dismisses charges against nine Kazakh biathletes
•  International Working Group (IWG) on Women and Sport - Asian Paralympic Committee and 8 NPCs sign Brighton Declaration
• TIU (Tennis Integrity Unit) - Issam Taweel Suspended and Fined for Tennis Match-fixing Offences
• TIU (Tennis Integrity Unit) - Tennis Official Svetlana Teryaeva Suspended After Failing to Report a Corrupt Approach to the Tennis Integrity Unit
• TIU (Tennis Integrity Unit) - CAS Upholds Lifetime Bans on the Alekseenko Brothers
• TIU (Tennis Integrity Unit) - Juan Carlos Saez Suspended for Eight Years and Fined $12,500 for Breaches of the Tennis Anti-corruption Program
• TIU (Tennis Integrity Unit) - Lifetime Ban for Diego Matos After Conviction on Multiple Match-fixing and Non-co-operation Offences
• TIU (Tennis Integrity Unit) - Russia’s Irina Khromacheva Suspended for ‘technical’ Breach of the Tennis Anti-corruption Program
• TIU (Tennis Integrity Unit) - Tennis Integrity Supervisory Board Confirms Agreement to Expanded Integrity Organisation Bringing Together Anti-corruption and Anti-doping Regimes From 2021
• TIU (Tennis Integrity Unit) - Edvin Gustafsson Suspended and Fined for Betting on Tennis Offences
• UCI (Union Cycliste Internationale) - Study reveals the economic impact of major UCI cycling events
• UCI (Union Cycliste Internationale) - UCI statement on Alessandro Petacchi

In the news

Doping

• Sean Ingle - Christian Coleman free to race for world gold after missed tests charge dropped
• Sean Ingle - Russia at risk of Tokyo Olympics ban over ‘inconsistent’ Moscow lab data
• Tariq Panja - Questions About Russian Doping Data Raise Fears About Manipulation
• Tariq Panja - WADA Gives Russia Three Weeks to Explain Missing Doping Data
• Liam Morgan - RUSADA director general warns Russian sport heading into "abyss" after data tampering claims
• BBC - Operation Puerto: Spanish legal system 'thwarted' anti-doping investigation
• Reuters - Cas to hear Chinese swimmer Sun Yang's doping case in public
• Ross Wenzel and Anton Sotir - Anti-doping: CAS accepts a new method to detect prohibited substances
• Law in Sport - AFC Disciplinary and Ethic Committee bans player for Anti-doping violations
• Law in Sport - Powerlifting Athlete, Michael Bond, Accepts Sanction for Anti-Doping Rule Violation
• Law in Sport - Dmitrii Smoliakov Accepts Sanction for Violation of UFC Anti-Doping Policy
• Lars Jørgensen - ‘WADA and CAS should be independent of both sport and politics’
• Lars Jørgensen - WADA president “welcomes feedback” from iNADO after call for a separation of powers

Football

• David Conn - Cardiff to appeal to Cas after order to pay Emiliano Sala transfer fee
• Tariq Panja - FIFA and Premier League Document Saudi Link in BeIN Piracy Fight
• Tariq Panja - Hacker Who Revealed Soccer Secrets Is Charged With 147 Crimes
• Tariq Panja - FIFA Set to Take On Agents With Proposed Changes to Transfer Market
• Tariq Panja - Agent Group Solicits Donations to Sue FIFA Over Transfer Limits
• Farnaz Fassihi - Iran’s ‘Blue Girl’ Wanted to Watch a Soccer Match. She Died Pursuing Her Dream.
• Martyn Ziegler - Premier League damaging smaller European leagues, Uefa report says
• BBC - Belgium football transfer: Two arrested in fraud inquiry

Other

• Sean Ingle - Government steps in to try to avoid India Commonwealth Games boycott
• Sean Ingle - ECB’s transgender review could result in more medical-driven policy
• Sean Ingle - Amnesty says Anthony Joshua is being duped over Saudi Arabia fight
• Sean Ingle - Amnesty says migrant workers still being exploited in Qatar
• Sean Ingle - Migrant workers and children to pad out crowd for World Championships
• Sean Ingle - IOC delays new transgender guidelines after scientists fail to agree
• Tariq Panja - Russian Athletes Set to Remain ‘Neutral’ at Track Championships
• Jeré Longman - Pan Am Games Protesters Get Probation. Olympians Get a Warning.
• Raphaël Faiss - Quels critères pour les catégories féminines dans le sport d’élite?
• Kareem Abdul- Jabbar - Should athletes at the 2020 Olympics take political stances?
• Stanis Elsborg - In the wake of the USA Gymnastics scandal, new bill proposal sparks debate on sport's autonomy
• Declan Hill - ’Sometimes we fixed more games than we could bet’
• Rasmus K. Storm and Christian Gjersing Nielsen - Formula 1 does not seem to have a positive impact on host regions

Blog

Asser International Sports Law Blog

• Ryan Gauthier - I’m A Loser Baby, So Let’s Kill Transparency – Recent Changes to the Olympic Games Host City Selection Process
• Thomas Terraz - Can a closed league in e-Sports survive EU competition law scrutiny? The case of LEC
• Despina Mavromati - Book Review - Football and the Law, Edited by Nick De Marco
• Sofia Balzaretti - Caster Semenya’s Legal Battle Against Gender Stereotypes: On Nature, Law and Identity

Law in Sport

• Josep F. Vandellos Alamilla - Why FIFA needs to provide a specific regulatory framework for football coaches (the difficulties in resolving club-coach disputes and the application of Swiss law)
• Benoît Keane - My take on why the European Commission lost the recent State aid cases against FC Barcelona and Real Madrid
• Toni Roca- FIFA’s clearing house: the future of solidarity mechanism & training compensation
• Oliver Fairhurst - Cheating in video games – lessons from Blizzard’s successful case against cheat and bot developer
• Joseph M. Hanna - U.S. sports law news update: $75 million NCAA concussion settlement approved
• Mark Hersey - Can sports clubs share their marketing database with sponsors?

Other

• Amélia S. Fouques - Is FIFA Serious About Fighting Match-Fixing?
• Jack Anderson - The Court of Arbitration for Sport under intellectual and efficacious scrutiny
• Andy Brown - A skilful poker player never shows their hand…
• Søren Bang, Christina Friis-Johansen and Jens Alm - Victims or winners: Why children’s rights should be the next big issue for sport

Upcoming Events

• 14-15 November – 3^rd WISLaw Annual Conference & General Assembly, Zurich, Switzerland
• 28 November - CIArb Kenya Annual Lecture - Promoting Sports Arbitration in Africa, Nairobi, Kenya
• 26-27 March 2020 – 14^th Conference of the PSA Sport & Politics Group, Etihad Stadium, Manchester, UK

The Olympic Games are a universal moment of celebration of sporting excellence. But, attention is also quickly drawn to their dark side, such as environmental issues, human rights breaches and poor living conditions of people living near the Olympic sites. In comparison, however, little commentary space is devoted to the views of athletes, the people making the Olympics. This article tries to remediate this, by focussing on Rule 50 of the Olympic Charter which prevents athletes from freely expressing their (political) thoughts.  

Rule 50 of the Olympic Charter on advertising, demonstrations and propaganda states in paragraph 3 that: ‘No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas’. This rule is supplemented by Bye-law to Rule 50 paragraph 1, which foresees that: ‘No form of publicity or propaganda, commercial or otherwise, may appear on persons, on sportswear, accessories or, more generally, on any article of clothing or equipment whatsoever worn or used by the athletes or other participants in the Olympic Games, except for the identification (…) of the manufacturer of the article or equipment concerned, provided that such identification shall not be marked conspicuously for advertising purposes. Any violation of the provisions of the present clause may result in disqualification or withdrawal of the accreditation of the person concerned. The decisions of the IOC Executive Board regarding this matter shall be final’.[1] 

According to the International Olympic Committee (IOC), which is responsible for the enforcement of the Olympic Charter, this rule warrants the spirit of the Olympic Games – i.e. promoting unity in diversity by bringing together a diverse range of competitors and spectators from all over the world –, the protection of the athletes and their ability to compete free from external distractions.[2]  

Although the underlying reasoning appears to be a very noble pursuit, questions might arise as to whether these goals can be reached when it is not clear, at least for an outsider and perhaps even for athletes, which situations and behaviours fall under the scope of political statement or propaganda and which not. In what way does the statement made by American sprinters Tommie Smith and John Carlos who, during the Olympic Summer Games of 1968 in Mexico City, went on the medal stand without shoes and with beads while hanging their heads and raising their fists when the national anthem set in for instance differ from the rainbow glove worn by Dutch snowboarder Cheryl Maas during the Games in Sochi? Both cases concern athletes making a statement as part of a broader political debate: Smith and Carlos wanted to express their sympathy for the struggle against racial segregation in the US and abroad, whereas Cheryl Maas, one of the openly gay athletes, showed her disregard for Russian’s anti-gay law, a controversial issue at the Sochi Olympic Games. Surprisingly, both incidents were dealt with differently by the IOC: where Smith and Carlos were thrown off the team and sent home, the IOC allowed Cheryl Maas to make her point without being penalised, as was illustrated by the fact that she was able to compete in another event later that week. 

The IOC, in general, does not elaborate further as to the reasoning used when ruling on such cases and confines itself by stating that each case is dealt with individually depending on the specific facts.[3]  Surely, several reasons can be found why both cases are, and perhaps even have to be, treated differently – both incidents took place in different times; Tommie Smith and John Carlos were staying on the medal stand when they made their statement, whereas Cheryl Maas made hers in the qualifying rounds in front of a single camera; Tommie Smith and John Carlos criticised their own country (USA) at the Olympic Games held in another country (Mexico), whereas Cheryl Maas criticised the country organising the Games (Russia); Tommie Smith and John Carlos didn’t feel sorry for the statement made, whereas Cheryl Maas stated afterwards that she didn’t have the intention to make a statement. However, one may question whether such a policy based on a case-by-case approach ensures unity and legal certainty. In the current state of affairs, it is not possible to provide general legal guidance on how a case will be tackled by the IOC. The Olympic Games should be based on transparent and equal rules for everybody, a fundamental requirement of both sport and the law. Hence, it is high-time for the IOC to provide detailed rules and guidance on the policy applying to political statements made by athletes.

[1] Olympic Charter, in force as from 9 September 2013, accessible via http://www.olympic.org/documents/ 

  olympic_charter_en.pdf

[2] http://isuprod.blob.core.windows.net/media/128853/ioc-guidellines-rule-503.pdf

[3] Rule 50 of the Olympic Charter: what you need to know as an athlete, accessible via http://assets.olympic.org/ 

   fortherecord/i8/info.html

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

The Headlines 

The CAS award in RFC Seraing v. FIFA

On 10 March 2017, FIFA published a short press release which praised the long-awaited award delivered by the CAS in the appeal of the Belgian football club RFC Seraing against FIFA’s decision. The French version of the award is now available on the CAS’s website.

The dispute in question emerged from agreements concluded between RFC Seraing and Doyen Sports Investments Limited, a private investment company known for its engagement in the acquisition of professional football players’ economic rights (Doyen). These agreements allowed Doyen to (i) influence the independence and the policy of the Belgian club; and (ii) receive an indemnity payable in connection with the future transfer of certain players. In September 2015, the FIFA Disciplinary Committee held that by entering into these agreements, RFC Seraing violated Articles 18bis and 18ter of the Regulations on the Status and Transfer of Players (RSTP) prohibiting the third-party influence on clubs and the third-party ownership of players’ economic rights. As a result, the Belgian club was banned from registering players on a national and international level for four consecutive registration periods and obliged to pay a fine of CHF 150,000.

On appeal, the CAS Panel has confirmed that Articles 18bis and 18ter RSTP are valid under European law and Swiss law. Having considered the sanction imposed by the FIFA Disciplinary Committee on RFC Seraing disproportionate, the CAS Panel reduced the transfer ban from four to three consecutive registration periods. For an in-depth analysis of the award, we invite you to read the recent blog written by our senior researcher Mr Antoine Duval.

The CAS award in Olga Abramova v. International Biathlon Union

On 1 January 2016, WADA prohibited the use of meldonium for the first time. A few days later, Ms Olga Abramova, a Russian-born Ukrainian biathlete, underwent an in-competition doping control which revealed the presence of meldonium in her body. An independent investigation was conducted by the Anti-Doping Hearing Panel (ADHP) of the International Biathlon Union. On 14 November 2016, the ADHP rendered a decision in which (i) Ms Abramova was found to have committed an anti-doping rule violation (meldonium); and (ii) a one-year period of ineligibility was imposed on her. Eventually, Ms Abramova appealed the said decision before the CAS.

In its press release dated 19 April 2017, the CAS announced that the appeal filed by Ms Abramova had been partially upheld. The CAS Panel has found to its comfortable satisfaction that Ms Abramova fulfilled her obligation to ensure that meldonium did not enter her body after 1 January 2016 (i.e. the date when meldonium was added to the list of prohibited substances). In other words, Ms Abramova ‘could not reasonably have known or suspected even with the exercise of utmost caution that meldonium could still be detected in her blood after 1 January 2016’. Accordingly, the CAS Panel has cancelled the one-year period of ineligibility imposed on Ms Abramova. It should be noted, however, that, in accordance with WADA Guidelines, the CAS Panel has confirmed the disqualification of any results achieved by Ms Abramova between 10 January 2016 and 3 February 2016.

France investigates potential corruption linked to the selection procedure for the 2018 and 2022 FIFA World Cup

Following the United States and Switzerland, France has recently become the third country to open a criminal investigation into potential corruption relating to the selection procedure for the 2018 and 2022 FIFA World Cup finals which are scheduled to take place in Russia and Qatar respectively. The Parquet National Financier, a French authority responsible for law enforcement against serious financial crime, has reportedly interviewed the former FIFA President Mr Joseph Blatter. The former UEFA President Mr Michel Platini, who admitted in the past that he had eventually decided to cast his vote for Qatar following a lunch with the former French President Mr Nicolas Sarkozy and senior Qatari officials, has not been interrogated by French authorities yet.

Sports Law Related Decisions

• CAS – Award delivered in the arbitration between RFC Seraing and FIFA
• Comisión Nacional de los Mercados y la Competencia (Spanish competition authority) – Decision on Liga Endesa and its anticompetitive behaviour
• European Commission – Decision on support from central government of the Czech Republic to non-profit sport facilities

Official Documents and Press Releases

• CAS – CAS cancels the one-year period of ineligibility imposed on Olga Abramova
• CAS – CAS issues decisions in the cases of Stanislav Emelyanov, Ekaterina Poistogova, Vladimir Kazarin and Alexey Melnikov
• FIFA – Activity report 2016
• FIFA – Agenda of the 67^th FIFA Congress
• FIFA – FIFA publishes new annual reports and confirms target result of USD 100 million for cycle
• FIFA – Financial report 2016
• FIFA – Football official Richard K. Lai banned by independent Ethics Committee for 90 days from all football activities
• FIFA – Governance report 2016
• IAAF – Independent Athletics Integrity Unit is operational
• IOC – IOC sanctions three athletes for failing anti-doping test at Beijing 2008 and London 2012
• IOC – IOC sanctions two athletes for failing anti-doping test at Beijing 2008 and London 2012
• Paralympic Movement – CAS decision on Russian Paralympic Committee confirmed by the Swiss Federal Tribunal
• UEFA – Three clubs exit settlement agreement with CFCB
• UEFA – UEFA Congress approves good governance reforms
• WADA – 2015 Anti-doping rule violations report
• WADA – Statement regarding Italian Tribunal decision on Michele Ferrari and entourage
• WADA – Statement on ARD documentary
• WADA – WADA reinstates the Madrid Laboratory
• WADA – WADA removes Brazil from the World Anti-Doping Code non-compliant list
• WADA – Yemen ratifies UNECO Anti-Doping Convention

In the news

Doping

• AFP News UK chief calls for more money in fight against doping
• The Associated Press 5 Russians banned for doping at Olympics
• The Associated Press IAAF clears 2 Russian world champions, 5 others to compete
• The Associated Press Lawmaker in Russia fights Olympic doping case at CAS
• Andy Brown Meldonium 2.0? Jamaican case highlights need for clenbuterol thresholds
• Hajo Seppelt and Thilo Neumann IOC sweeps test results under the carpet
• Sky Sports UEFA unhappy with WADA over Mamadou Sakho’s ban
• Joscha Weber Doping pressure mounts on IOC at German parliament

Football 

• Andy Brown CONMEBOL publishes details of suspicious bank transfers totalling USD 129 million
• CIES Football Observatory The Champions League among the most unbalanced competitions
• David Conn France investigates votes for 2018 and 2022 World Cups and questions Blatter
• David Conn Newcastle United and West Ham raided in HMRC tax fraud investigation
• Rob Harris Anglo-French soccer fraud probe sees raids on teems, arrests
• Liam Morgan Sheikh Ahmad resigns from all footballing roles following alleged corruption link
• MSN Qatar football official wins FIFA ban appeal
•  Reuters FIFA compliance official pleads guilty in U.S. bribery case
• Reuters Genoa defender Armando Izzo banned for 18 months over match-fixing claims
• Charles Sale FIFA legal bills for investigation into corruption in football hit £80 million mark
• Stephan Uersfeld DFB backs Bild over claims of Russian censorship for Confederations Cu

Other

• Nick Butler IOC ban 2024 candidate cities from Pan-American Sports Organisation General Assembly
• Bryan Armen Graham eSports to be a medal event at 2022 Asian Games
• Craig Lord Governance review lawyers tell FINA that Ethics Panel must have stand-alone powers
• Reuters CAS upholds Mexican player’s appeal against match-fixing ban

Academic Materials

 International Sports Law Journal, April 2017, Volume 16, Issue 3

• Johan Lindholm Editorial to the International Sports Law Journal, Volume 16, Issue 3-4
• Mordehai Mironi The Promise of Mediation in Sports-related Disputes
• Oskar van Maren How to Bail Out Your Local Club: The Application of the State Aid Rules to Professional Football Clubs in Financial Difficulty
• Antoine Duval The Russian Doping Scandal at the Court of Arbitration for Sport: Lessons for the World Anti-Doping System
• Paolo Garraffa Michael Jordan’s Who? The Trade Mark Litigation between Michael Jordan and ‘Qiaodan’ Sports
• Terence D. Brennan Over Compensation: The Battle for Training Compensation and Solidarity in United States Soccer
• Salomeja Zaksaite and Karolis Radoševičius Manipulation of Competitions in Formula 1: Where Policy Ends and Cheating Begins
• Jonathan G. Merritt ‘Don’t Look a Gift Horse in the Mouth: Regulating for Integrity, What Equestrianism Can Learn from Thoroughbred Racing’
• Claire Sumner The Spirit of Sport: The Case for Criminalisation of Doping in the UK

Others

• Borja García A New Horizon in European Sports Law: The Application of the EU State Aid Rules Meets the Specific Nature of Sport
• John Grady Analysing Rule 40’s Restrictions on Using Athletes in Olympic Sponsorship at Rio 2016
• Maureen Weston The Regulation of Doping in U.S. and International Sports
• Salomeja Zaksaite and Karolis Radoševičius Manipulation of Competitions in Formula 1: Where Policy Ends and Cheating Begins

Blog

Asser International Sports Law Blog

• Antoine Duval RFC Seraing at the Court of Arbitration for Sport: How FIFA’s TPO Ban Survived (Again) EU Law Scrutiny
• Saverio Spera The Validity of Unilateral Extension Options in Football – Part 1: A European Legal Mess
• Adriaan Wijckmans The Legality of Surety Undertakings in Relation to Minor Football Players: The Lokilo Case

Law in Sport

• Thomas Barnard Six key points for footballers to consider when signing their first professional contract
• Lydia Banerjee How a change in approach could help tackle racism in football – The Jonjo Shelvey case
• Manali Kulkarni Child welfare in sport – How different countries approach mitigating the risks relating to contact sports for children
• Despina Mavromati The application of Swiss law in doping cases before the CAS and the Swiss Federal Tribunal
• Zane Shibab, James Thorndyke and Thomas Gibby How to recover prize money from doping athletes: Lessons for event organisers from the Shobukhova case
• Jamie Singer and Leon Farr Changing nationality in sport: Where should we draw the line? A review of the Aljaz Bedene case

Others

• Aage Radmann Another book about football hooliganism – is that really necessary?
• Andreas Selliaas How far should governments go controlling the governance of international sports federations?
• Ross Tucker On the Jamaican clenbuterol positives: A procedural failure and credibility black hole
• Mike Woitalla How FIFA rules hurt immigrant children in the USA

Upcoming Events 

• 7-9 June – International Conference on Doping and Public Health, Thon Hotel Ullevaal Stadion, Oslo, Norway
• 29-30 June – Sport & EU 12^th Annual Conference, Molde University College, Molde, Norway
• 26-27 October – ISLJ Annual Conference on International Sports Law, T.M.C. Asser Institute, The Hague, the Netherlands. Save the date!

Editor's note: Rusa Agafonova is a PhD Candidate at the University of Zurich, Switzerland   

The Olympic Games are the cornerstone event of the Olympic Movement as a socio-cultural phenomenon as well as the engine of its economic model. Having worldwide exposure,[1] the Olympic Games guarantee the International Olympic Committee (IOC) exclusive nine-digit sponsorship deals. The revenue generated by the Games is later redistributed by the IOC down the sports pyramid to the International Federations (IFs), National Olympic Committees (NOCs) and other participants of the Olympic Movement through a so-called "solidarity mechanism". In other words, the Games constitute a vital source of financing for the Olympic Movement.

Because of the money involved, the IOC is protective when it comes to staging the Olympics. This is notably so with respect to ambush marketing which can have detrimental economic impact for sports governing bodies (SGBs) running mega-events. The IOC's definition of ambush marketing covers any intentional and non-intentional use of intellectual property associated with the Olympic Games as well as the misappropriation of images associated with them without authorisation from the IOC and the organising committee.[2] This definition is broad as are the IOC's anti-ambush rules.

Rule 40 of the Olympic Charter

The famous Rule 40[3] of the Olympic Charter was introduced in 1991 prohibiting competitors[4] from any use of name, image or sports performances for advertising purposes during the Olympic Games and since then has been critised for its disproportionality.

The blanket ban covered all types of advertising during the "blackout" ("frozen") period of almost a month, starting nine days before the Opening Ceremony and ending three days after the Closing of the Games. Any Olympic-related terms varying from quite specific "Olympia" and "games" to more generic "medal", "gold", "pedestal" and to very questionable "summer", "challenge" and "victory" were banned from use in an advertising context. These restrictions are even more drastic knowing that violation of the Olympic Charter can entail temporary or permanent ineligibility or exclusion from the Olympic Games.[5]

Legal challenges

While companies still managed to find loopholes in the regulations,[6] a legal challenge was expected on both sides of the Atlantic. In the US, the antitrust lawsuit against the USA Track and Field and the US Olympic Committee (USOC) brought to the U.S. District Court by a runner Nick Symmonds[7] was dismissed on the basis of the 1978 Amateur Sports Act, which granted an implied antitrust immunity to the USOC.

In Europe, however, the complaint filed with the German Competition Authority (Bundeskartellamt) by the German Athlete Commission and the Federal Association of the German Sports Goods Industry was successful and resulted in a series of commitments undertaken by the German NOC (DOSB) and the IOC, but only German athletes could benefit from it.

Bundeskartellamt refers to the ISU and Kristoffersen cases admitting the protection of the solidarity mechanism as a potential justification for a measure restricting competition, but only "if the financial support granted by the system is sufficiently transparent for the participants who contributed their performance", i.e. when they are "in a position to understand and assess the volume of income generated" and "whether this income, or at least most of it, has in fact been spent to the benefit of those athletes who are disadvantaged in terms of opportunities to participate in the Olympic Games". The Olympic solidarity plan does not attain this high standard of "sufficient transparency".[8] Hence, Rule 40 and its German analogue were preliminarily assessed as violating Art. 102 of the Treaty on the Functioning of the European Union (TFEU) (abuse of dominant position) and Sections 18 and 19 GWB (German Competition Act).

The German decision gave the green light to advertising campaigns by non-Olympic sponsors during the frozen period and replaced the authorisation procedure by the requirement to notify the NOC of the intended campaigns. The list of protected terms was narrowed down, and only sanctions of economic nature, i.e. contractual damages and/or penalties, became admissible.

Reconsidering Rule 40

In summer 2019, the IOC amended Rule 40 for the first time in many years. Its new wording was akin to a 180-degree turn and allowed competitors, team officials and other team personnel to use their person, name, picture, and sports performances for advertising purposes during the Olympic Games as far as the principles determined by the IOC Executive Board were respected.  

NOCs should concretise the rule for their Olympic team in accordance with the Key Principles on the application of by-law 3 to Rule 40 of the Olympic Charter (Tokyo 2020 Key Principles) which give the NOCs some guidance but also leave them a considerable leeway.

In terms of substance, non-Olympic sponsors can now undertake "generic advertising", i.e., campaigns launched at least 90 days before the Event, which create association with the Olympic Games only through an athlete's image, and which should avoid any unusual activity during the Games. What is considered unusual is to be determined on a case-by-case basis.

Regarding the procedure, non-Olympic partners must now only notify in advance the IOC or the respective NOCs of their advertising plans. The NOCs are free to decide on the form and modalities of this notification. It can be a simple notice, such as in Switzerland, a two-step notification (i.e. a pre-registration and a further notification) as in South Africa, or a more complex legal structure consisting of a notification accompanied by a personal sponsor commitment agreement (PSC) concluded by and between an athlete's sponsor and the NOC, as is the case in the USA or in Ireland. In the latter case, the NOC obtains additional contractual guarantees in case of a violation of the Rule 40.[9]

All these discrepancies put athletes on an unequal footing. The commercial rights of those sportspeople who already struggle to find sponsors due to the limited exposure of their sports disciplines might be curtailed even further by the non-attractiveness of their NOCs' regimes in respect to Olympic sponsorship.

Finally, the IOC recommends that NOCs adopt monetary rather than sporting measures to sanction violations.[10] But recommendations are non-binding, while it seems that such a crucial issue as sanctions should be covered by a uniform rule more than anything else.

Conclusion

Athletes have, at times in history, been precluded from fully monetising their economic potential during the most important - and the most marketable - moments  of their careers, which themselves are relatively short. The amended Rule 40 has been welcomed as a big achievement and fits well with the overall trend for athletes' growing engagement in policy-making processes and the increasing role of competition law in shaping sports governance. However, it seems that Rule 40 is not yet at its final destination. To get there, it should find the balance between the individual athlete’s right to generate income in relation to their sporting career and the collective interest in protecting the solidarity model. It is indeed important to remember that there are many athletes, including those at the grassroots level, who are supported by the solidarity mechanism rather than by sponsors' financial backing.

Conversely, while the concept of the Olympics has not been distorted by allowing professionals to compete in the Games, why would it be inadvisable to reconsider the idea of commercialisation of sport? The outbreak of COVID-19 and the postponement of the 2020 Tokyo Olympic Games drew attention to the insecurity of athletes in many senses, and the relationship between an athlete and a sponsor acquired a deeper significance: despite the uncertainties of the sports calendars, epidemiologic regimes, and impossibility of long-term planning, the parties - or rather the partners - maintained mutual support and shared common values. 

All regulatory instruments should be adjusted accordingly. Rule 40 as it existed before 2019 appeared archaic. When it entered into force, neither the internet nor social media existed. As of today, Twitter and especially Instagram have shaped a new paradigm of hashtags, likes, reposts, and followers.[11] 

Rule 40, as it exists in 2021, leaves a risk of unequal implementation due to the fact that NOCs and athletes' associations have different degrees of bargaining power across the globe and, in the absence of a uniform clause imposed by the international regulator, give divergent interpretations to the scope of the rule. The country-to-country approach can sometimes allow for necessary flexibility in order to ensure optimal implementation of the regulations, in particular, regarding compliance with the national legislation of each state. However, some issues, such as the sanctioning regimes, should be handled in a centralised and harmonised way.

The German example has set the trend, but many NOCs may be reluctant to follow it. In this respect, the European Commission may play an important role in reconciling athletes' economic interests and the SGBs' interests with due consideration to the specificity of sport. It remains to be seen how the situation will be resolved outside the European Union. Meanwhile, during the period from 13 July to 10 August 2021, we will most likely witness a dramatic change in advertising as the new Rule 40 will be applied. It is possible that the focus on sports competitions will be slightly diluted by additional commercial ads, but even this scenario seems appealing after the silence of quarantine. 

[1] The geographic market for the organisation and exploitation of the Olympic Games has been defined as worldwide. See Bundeskartellamt, Decision pursuant to Section 32b GWB Public version, B-226/17 (25 February 2019), para. 56. The version in English is available at https://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Entscheidungen/Missbrauchsaufsicht/2019/B2-26-17.pdf?__blob=publicationFile&v=2. Accessed on 30 May 2021.

[2] Brand Protection Guidelines, Tokyo Organising Committee of the Olympic and Paralympic Games, Version 5.0. February 2020, Pt. 6. Ambush Marketing.

[3] Here and hereafter: Rule 40 refers to Bye-law 3 to Rule 40 of the Olympic Charter.

[4] In 2003, the rule was expanded to coaches and officials.

[5] Olympic Charter, Rule 59 (2.1).

[6] For example, in the pre-London-2012 campaign “Find Your Greatness”, Nike shows athletes from the towns named London situated in the US, Canada, Jamaica, and Nigeria and never mentions London in the UK. 

[7] Gold Medal LLC v. USA Track & Field, 187 F. Supp. 3d 1219, 1222 (D. Or. 2016).

[8] Bundeskartellamt, Decision pursuant to Section 32b GWB Public version, B-226/17, 25 February 2019, para. 103.

[9] McKelvey Steve, Grady John, Moorman Anita M., Ambush Marketing and Rule 40 for Tokyo 2020: A Shifting Landscape for Olympic Athletes and Their Sponsors, Journal of Legal Aspects of Sport, 2021, 31, pp. 94 – 122.

[10] Commercial Opportunities for Athletes. Rescheduled Olympic Games Tokyo 2020 (in 2021), p. 14. Frequently Asked Questions for Athletes.

[11] It is, for example, the key tool for fans' engagement. See Ennis Sean (2020) Understanding Fans and Their Consumption of Sport. In: Sports Marketing. Palgrave Macmillan, Cham, pp 75-100.